Granting immunity to all but the initial sources of defamatory
statements protects freedom of expression, state high court says.

By Maura Dolan, LA Times Staff Writer November 21, 2006

SAN FRANCISCO — Internet users and providers cannot be held liable for posting defamatory material written by someone else, the California Supreme Court ruled unanimously Monday.

"The prospect of blanket immunity for those who intentionally redistribute defamatory statements on the Internet has disturbing implications," Justice Carol Corrigan wrote for the court. But, she added, immunity "serves to protect online freedom of expression and to encourage self-regulation."

Monday's decision was consistent with holdings by many federal appeals courts and one other state high court. "The courts are now uniform," said Ann Brick, who represented the American Civil Liberties Union of Northern California in the case.

But attorneys on both sides of the case said the California Supreme Court went further than other courts by giving immunity to all Internet users except the original author.

"What you couldn't put in your print newspaper, you can put in your Internet newspaper," said Christopher E. Grell, who represented two doctors who said they were defamed. "The notion of fact-checking and verifying things doesn't apply to the Internet."

Mark Goldowitz, the lawyer for the defendant, cited a line in the ruling that the decision brought "the law of libel from the Gutenberg era to the cyberspace era."

Unlike hard-copy publications, the Internet allows users to "immediately respond and correct any harm," said Goldowitz.

"Not everyone has a printing press, but everyone can start a blog or post on a news group."

Although the court did not specifically address media websites, lawyers on both sides of the case said the ruling would protect newspapers and other media that report defamatory remarks by third parties on their websites but not on their pages or on air.

The decision overturned a Court of Appeal ruling and threw out a lawsuit claiming that Ilena Rosenthal, a San Diego activist for breast implant victims, defamed Dr. Stephen J. Barrett and Dr. Terry Polevoy on the websites of two news groups.

Barrett and Polevoy operated websites aimed at exposing health fraud in various kinds of alternative medicine. They said Rosenthal, a supporter of alternative medicine, made the postings even after she was told they were libelous.

Rosenthal wrote in one posting that Barrett, a retired psychiatrist in Philadelphia, was "arrogant, bizarre, closed minded; emotionally disturbed, professionally incompetent, intellectually dishonest … a quack, a thug, a bully, a Nazi."

She similarly described Polevoy, who works in Canada, and accused him of making antiSemitic remarks.

An Alameda County Superior Court judge threw out the doctors' lawsuit against Rosenthal, ruling that her postings involved the public interest and for the most part contained no assertions that could be proven false.

But the court determined that one statement in an article Rosenthal received from Tim Bolen, subtitled "Opinion by Tim Bolen," was problematic. The article accused Polevoy of stalking a Canadian radio producer.

The trial court decided nonetheless that Rosenthal could not be held liable because she had not written the original posting.

A libel case against Bolen for first making the stalking allegation is pending. Bolen describes himself as a crisis management consultant and health advocate.

In ruling for Rosenthal, the California Supreme Court interpreted a provision of the Communications Decency Act of 1996. Although many courts have ruled on the provision, the Rosenthal case was the first in which an Internet user with no responsibility for the site carrying the posting claimed federal immunity.

The court explained that Internet defamation law differs from that of other media.

"Book, newspaper or magazine publishers are liable for defamation on the same basis as authors," Corrigan wrote. "Book sellers, news vendors or other 'distributors' … may only be held liable if they knew or had reason to know of a publication's defamatory content."

Congress "chose to protect even the most active Internet publishers, those who take an aggressive role in republishing third-party content," she wrote.

She also cited practical reasons for ruling in favor of Internet freedom. If California permitted defamation suits against those who post others' work, the state could be inundated with lawsuits.

"Adopting a rule of liability … would be an open invitation to forum shopping by defamation plaintiffs," Corrigan wrote.

She said the threat of liability also would reduce the flow of ideas on the Internet. "The volume and range of Internet communications make the 'heckler's veto' a real threat," Corrigan said.

Grell, who represents the doctors, said he has not yet decided whether to appeal to the U.S. Supreme Court. Noting that the court twice referred to blanket immunity as troubling, the lawyer said Congress should now amend the law to increase Internet accountability.

The case generated many friend of the court briefs, including those from Google, EBay, Microsoft Corp. and law professors who specialize in Internet law. They all sided with Rosenthal.

Rosenthal did not return a call for comment Monday but said on a website that she was gratified by the ruling. She described the litigation as "exhausting" and said it was "intended to silence my voice and exhaust my resources."

Using money provided by its special interest clients -- usually large
corporations, business associations and governments -- the PR industry
has vast power to direct and control thought and policy. It can mobilize
private detectives, lawyers, and spies; influence editorial and news
decisions; broadcast faxes; generate letters; launch phony "grassroots"
campaigns; and use high-tech information systems such as satellite feeds
and internet sites.

Activist groups and concerned individuals often fail to recognize the
techniques and assess the impact of PR campaigns. And indeed, with its
$10 billion-a-year bankroll and its array of complex, sophisticated
persuasive weaponry, the PR industry can often out maneuver,
overpower, and outlast true citizen reformers. Identifying the techniques
of the industry and understanding how they work are the first steps in
fighting back.